Nintendo is wrong to say an out of court settlement over mod-chips will make it easier to win future lawsuits, say lawyers.
The law firm which recently unsuccessfully defended a local distributor of the R4 cartridge which allows piracy on Nintendo’s handheld DS console has warned the case does not set a legal precedent in Australia.
Several weeks ago Nintendo successfully took action against RSJ IT solutions, which operates the GadgetGear.com.au website, with total damages to be $620,000. At the time Nintendo said it was considering pursuing similar action against other sellers of devices that allow games to be illegally copied for use on its consoles.
But in a statement issued yesterday, law firm Berrigan Doube, which represented RSJ, said the legal issues were not decided in the case because it was settled out of court.
“It is incorrect to state that the court had ruled that the respondents had infringed any form of intellectual property of Nintendo through the sale and distribution of the RS4 chip,” the statement in the name of firm director John Cheng and lawyer Damin Murdock.
Cheng said that if the case had proceeded and the court had handed down a judgement, that decision would have offered Australia some clarification in regards to what he said were “uncertainties in Australian law surrounding the sale of flash cards in gaming consoles”.
“Interestingly, the question also of whether Nintendo is contravening the Trade Practices Act by employing the security measures that can be found in the Nintendo DS also remains open,” he said.
Cheng said Berrigan Doube had been prepared to battle the case, but Nintendo and RSJ had made a “commercial decision” to settle the case. “The reasons for settling this case are of course, confidential, but the commercial reality of litigating against one of the world’s largest gaming houses may certainly have a role to play,” he said.
The R4 cartridge — which is popular internationally — runs its own operating system for Nintendo’s DS handheld device. Individual games and other applications, some of them purporting to be legal, can be downloaded from the internet as small files and simply added to the chip’s storage.
The cartridge is then slotted into the top of a Nintendo DS as any other cartridge would be. It does not permanently modify the handheld console. It is sold by a number of Australian and international distributors
The news comes as Nintendo Australia appears to be ramping up its fight against game piracy. It recently revealed that it had successfully sued a Queensland resident for uploading to the internet a copy of its Wii game New Super Mario Bros a week before its Australian release in November last year.
The Queenslander — named by multiple media outlets as James Burt — has been ordered by the Federal Court to pay Nintendo $1.5 million. At the time, Nintendo said it would pursue anyone who breached its intellectual property rights “using all means available to it under the law”.
Nintendo has been contacted for comment.